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IBM: Now trying to dig out…

IBM has issued another statement on the TurboHercules imbroglio. This one is reported by the Linux Foundation, but comes from Dan Frye. Dan Frye heads IBM’s Linux Technology Center and was actually at the top of my mental shortlist of likely voices of sanity over there. (Full disclosure: Dan kept me supplied with IBM Thinkpads for a couple of years as a thank-you gesture.)

The good news is that Dan says IBM will stand by the letter of its 2005 pledge. Furthermore, the second sentence of Dan’s pledge leaves no room for doubt that Hercules is a covered project. This is in flat contradiction to whatever brainless droid the Wall Street quoted yesterday on IBM reserving some right to decide that Hercules is ineligible. It also contradicts the previous implication that IBM is prepared to go to court over those two patents.

The bad news is that Dan leaves open the possibility that IBM may sue over the other close to 200 patents. I think it’s important not to overreact to this; his statement was clearly immediate damage control rather than a final ukase. The effect is that IBM now looks as though somebody with a clue has woken up to how much reputation damage their previous blunders have done them.

My guess is that the matter is now being debated (or soon will be) at a level higher than Frye or either of the pair of clowns who had previously made IBM’s posture look so very wrong. This might, still, blow over.

But IBM should hear this, loud and clear: the letter of your pledge is not enough. You cannot simultaneously hold yourself forth as an ally of open source and conduct patent warfare against an open-source project. Betrayal stings; we won’t abide it, and I wouldn’t argue that we should even if I thought I could win that argument. If you try to have this both ways, you will enrage the community more than if you had been a frank enemy all along.

Understand that our intransigence on this score this is only partly on behalf of Hercules itself. We detest the patent weapon, even in the hands of a sometime ally, because we fear it so much. What IBM does in this matter will set a precedent for the behavior of others; if IBM chooses to set the wrong precedent, it will make enemies of us.

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46 thoughts on “IBM: Now trying to dig out…”

I’m not quite sure I take Dan Frye’s statement as an acknowledgment that Hercules does indeed qualify under the 2005 pledge. He didn’t come right out and say it, and that leaves the door open for the other statement to be true as well in IBM’s eyes. All they have to do is argue that Hercules isn’t an open source project within the meaning of the pledge.

That said, I agree that the larger issue here is not the two patents at issue, but the entire portfolio. I would hope that, should IBM formally attack Hercules on a patent basis, the community would rise to its defense.

The apparent story will change again and again, so news articles won’t be a good way of making a concise record. Wikipedia often suffices, but this event mightn’t pass their notability requirements and the part that’s important to us (software patents) would get woven in with stuff that some others think is important (either company’s commercial strategy).

To briefly play devils advocate here, is there a point where it is more politic to step back and say “I disagree with patents but fighting this fight gives me no advantage”?

I’d worry that either way this goes is a shit sandwich. The problem with the “right precedent” is that it tells companies that dabbling with OSS means you have to perpetually embrace open source everywhere. You can’t have an Operating Systems department which is so far in bed with OSS that they’re legally defacto and at the same time a hardware business that holds OSS at arms length. It’s all or nothing.

That might be the “right” message. RMS would certainly dissapprove of anything else. But is an excluded middle the most useful message to send?

I’m still reading and absorbing the story as it happens. I just read a post on Groklaw about why IBM is free to go after TurboHercules. Just wanted to throw that out there to get a different point of view. Besides, no one is going to say PJ would encourage any unjustified or unnecessary IP litigation!

I understand that point of view. The problem is, that letter was IBM response to the EU antitrust filing by TurboHercules. PJ’s point is that Big Blue is not violating their patent pledge, since they are defending themselves from TurboHercules’ attack. What the community needs to do, is research further into the matter. PJ brings up the possibility that this is an attack on Open Source by proxy, like the whole SCO saga, the Google EU antitrust proceedings and the like. I’m not ready to jump on either side until I get more information. While Groklaw is definately on the side of Open Source, PJ and the Groklaw community do an outstanding job of researching issues.

I’m disappointed by the attitude of the Groklaw commenters…they only stopped saying I was a Microsoft dupe a little while ago, and now are saying that I’m just being used by Microsoft. That really isn’t sitting well with me…

>Iâ€™m disappointed by the attitude of the Groklaw commentersâ€¦they only stopped saying I was a Microsoft dupe a little while ago, and now are saying that Iâ€™m just being used by Microsoft. That really isnâ€™t sitting well with meâ€¦

@ Jay Maynard Iâ€™m disappointed by the attitude of the Groklaw commentersâ€¦they only stopped saying I was a Microsoft dupe a little while ago, and now are saying that Iâ€™m just being used by Microsoft. That really isnâ€™t sitting well with meâ€¦

There are some who disagree with PJ there. The truth is, there aren’t a lot of publicly available documents, which is where PJ’s expertise is. I don’t think she’s thought about what IBM’s letter means to Redmond:

It’s okay now to directly come out and threaten FOSS competitors with patent enforcement action. No more need there be vague threats about the Linux kernel infringing Microsoft patents. Now Microsoft can use IBM’s behavior as a precedent to target Red Hat and Canonical.

@esr Yeah. PJâ€™s jumped the shark on this one, I fear.

She was pretty irrational and shrill in the Psystar case, too. Sometimes you have to make a quick judgment as to who is “good” and who is “bad” in a situation. Sometimes you get it right, sometimes you don’t. The best thing is to be willing to acknowledge mistakes and to fix them quickly. In this situation, with the astonishing lack of public documentation, the best thing to do is to be a neutral observer who reports the known facts and explains related legal doctrines without specifically supporting either party.

Personally, I think someone in TurboHercules and someone in IBM should sit down with a couple of SFLC lawyers and mediate some kind of quiet agreement that makes all patent claims go away (since those claims attack the underlying open source product, and not just the company that provides support services). Maybe they need to do a stock swap, so that TH becomes part of the IBM family (and Hercules would then be a sponsored independent similar to Eclipse).

I want to know why anyone thinks Hercules and/or TurboHercules are somehow connected to or being used by Microsoft?

As far as the EU patent fight goes, IBM and Microsoft are fighting on the same side — they’re both very pro-patent. Each company holds thousands of patents, so that shouldn’t surprise anyone.

As far as any antitrust proceedings in the EU, on the one hand, antitrust laws are bad news because they are a powerful tool that governments use to manipulate industry. On the other hand, as someone in favor of free markets, I hate it when big companies leverage their monopoly status to stifle competition. On the gripping hand, IBM is really no different than Apple or Sun/Oracle in tying their operating system to their hardware; the OS is simply considered a component of the hardware and to buy the OS, you need to buy the hardware and if you don’t like that arrangement you aren’t really compelled to buy the hardware in the first place — after all, you could always build your solution around a cluster of commodity servers rather than a mainframe.

1) Open Source project Foo relies upon IBM’s pledge not to sue over certain patents.
2) Someone creates a SuperFoo business that uses the Foo code.
3) SuperFoo makes IBM nervous.
4) IBM nazgul send Cease-n-Desist letter to SuperFoo
5) SuperFoo calls antitrust enforcement goons and says IBM is breaking the law.
6) IBM says that 5) absolves them from their pledge and sues over the patents.
7) IBM wins
7.1) a court judgement that Foo is infringing upon its patents.
7.2) a settlement stipulating that Foo is infringing upon its patents.
8) No business in their right mind will use Foo, because promise 1) is clearly toothless.

I see the potential for a lot of collateral damage here, and a POWERFUL incentive for a certain software large company to bankroll a small startup to play agent-provacateur in the role of SuperFoo here, to start a nice Reichstag Fire, then sit back and enjoy the reaction.

“DCL’s philosophy assumes the user is tired, hasn’t had enough coffee, and making mistakes. Every command is “syntax checked” and the whole line is bounced if a single error is detected. (this is humble and much more desirable, especially in a business environment where data losses can’t be tolerated)”

“UNIX shells assume the user is not tired and intends everything that is typed. (this is very arrogant and dangerous but is also very fast)”

In general a clearer understanding of situation might be had by reading the four letters in the the TurboHercules IBM exchange allowing inferences to be made from the body of works as a whole. These are found at:http://www.turbohercules.com/TH_IBM_Letters/

Of particular interest is the Letter from Mr. Bowler to Mr. Anzani wherein he solicits a list of intellectual property from IBM (TH-letter-to-IBM-2009-11-18.pdf, 3rd para):

We also were surprised to at the suggestion that our TurboHercules product – which merely
relies on Hercules open source emulation software to run z/OS on Intel-based servers – might
infringe certain IBM intellectual property. Hercules has been widely used in the development
community, as well as within IBM itself, over the past ten years. Prior to receiving your letter, we
were not aware of any claim that Hercules might infringe IBM’s intellectual property. If you believe
that the Hercules open source project infringes any IBM intellectual property, please identify it so
that we can investigate that claim.

In the unlikely event that IBM does believe that the Hercules open source project infringes
any IBM intellectual property, we kindly ask you to add any such property to the portfolio of patents
that IBM has already pledge for the free use of the open source community. …
—

We can note that the much quoted letter from Mr. Anzani is the reply to this and supplied a list of IBM intellectual property as requested by Mr. Bowler, albeit in a not particularly timely fashion. But then from the number of entries in the table of patents and patent applications, that may be understandable. That table while considered non exclusive represents a considerable amount of work.

The above quoted letter immediately preceded Mr. Anzani’s reply of 11 March 2010 (Anzani_reply_March_2010_w_patent_list.pdf) in the exchange between IBM and TurboHercules. From reading this letter it would appear that Mr. Bowler was not anticipating any substantial results.

TurboHercules decided to file its complaint after it became apparent to the company that IBM’s efforts to protect its mainframe monopolies extended to open-source solutions. “TurboHercules is by no means anti-IBM,” said Bowler. “We originally wrote to IBM requesting that it license its mainframe operating system to customers, on reasonable and fair terms, for use with Hercules in certain circumstances. Not only did IBM deny our request, but it now suddenly claims, after ten years, that the Hercules open-source emulator violates IBM intellectual property that it has refused to identify. We then realized that our only hope as a small company was to file a complaint with the European Commission.”

—

While IBM has stated their list is non-exhaustive there do appear to be an extensive number of items presented by Mr. Anzani. I suggest that perhaps the press release has a misrepresentation or erroneous characterization of IBM’s reply that might easily be interpreted by the mildly informed reader as an element of a propaganda campaign. Likewise that the list was requested by Mr. Bowler alters my personal perception of the presentation of the list although the language of the Anzani letter is troubling, as also are the press statements IBM has made since. Note the professed ignorance in the structure of the Anzani comments on infringement, wherein they have concerns that such an emulator would infringe. What’s at play is whether monetary damages are available after knowing of infringement for some period without acting.

My impression of IBM’s stance narrows to that of someone demonstrating that TurboHercules consideration request that IBM’s customer’s licenses for IBM’s software be allowed on non-IBM platforms is simple out of reach. Apparently TH agrees and filed an EU complaint. Despite esr’s recent assertion on Groklaw that the “antitrust angle is a distraction” I see it as the only hope that TH has of prevailing in their business. Whether or not IBM’s desire to maintain control over their business rises to the level of antitrust action is another matter, in which patents are only a small part of the story. The main attraction is whether or not IBM has the right to control their own software in the face of antitrust action used as a lever. I don’t anticipate that any perceived or actual patent threat will be the deciding factor. Without EU intervention TurboHercules does not have a business model that works with or without adding the necessary patents to IBM’s patent pledge. For whatever reason they apparently persevered in the belief they could change IBM’s intent to keep it’s software tied to it’s hardware until IBM placed enough obstacles in their way to dissuade them.

>Despite esrâ€™s recent assertion on Groklaw that the â€œantitrust angle is a distractionâ€ I see it as the only hope that TH has of prevailing in their business.

I think you’re correct. I meant that the anti-trust angle is largely irrelevant to the open-source community’s interests. It’s not really significant to us what kinds of catfights vendors get into with each other; what’s significant is the actions they take to help or hinder open source.

Sigh. I’m about this far > < from giving up entirely on Groklaw. It’s becoming clear to me that PJ’s not interested in anything that doesn’t paint IBM as saints and anyone who dares to challenge them on anything at all as demons. She’s cherry-picked my comments to make me look as bad as possible, totally ignored others that refuted her points completely, and accused me of launching personal attacks for pointing it out.

Her site has gotten a lot of geek cred for being the go-to resource on the SCO fiasco, but she’s using that cred in ways that, if there were any justice, would destroy it. Sadly, it doesn’t appear to be working that way.

If you’re using Firefox or Chrom[e|ium], there are two extensions, “It’s All Text” and “Edit with Emacs”, respectively that allow you to edit a multiline text boxes in Emacs. Then you can use Emacs’ html-autoview-mode. Not nearly as seamless, but you get Emacs’ keybindings and html-mode goodies along with it.

@Jay: I won’t go so far as to say that PJ is an IBM astroturfer, because I don’t know for sure and haven’t bothered to dig much into the issue, but various people have suggested that she is. Unfortunately, one of those people is Maureen O’Gara, and we all remember the personal attack article MOG wrote about PJ, which basically destroyed all of O’Gara’s credibility. As much as I hate to say it, there is often a grain of truth in any libelous piece, and that could be it.

But again, let me re-iterate: I do not know, and I’m not actually making any claims here, but you have to admit, PJ’s recent behavior with regard to the Hercules and TurboHercules SAS stories on her site looks awfully suspicious.

You’ve left out something very important. Something Dan surely knows but the suits making the real decision might not know:

1) the OS world kind of overlaps the corporate world and the world of the private enthusiaists

2) the later is much less motivated by money and much more motivated by emotional and idealistic reasons than the former.

I’m not sure the suits understand it. For you it is a “d’uh” thing that goes without saying, and therefore you might easily oversee it. Yet it is crucially important to get the suits understand it fully.

A good way to make the suits understand it is to make them think about their private enthusiasist allies in the OS field as they think about their customers. Because I think they already understand this sort of thing well enough about their customers.

But I think in their worldview only customers are motivated by emotional or idealistic things and suppliers are solely motivated by money.

This mistake needs to be corrected if you want to make them make the good decision.

The problem (and I know I’ve been rather sharp with Jay over this) is that Hercules != TurboHercules. But various people (Jay included) seem to think that there is no difference between them.

IBM does not want to do business with TurboHercules. IBM does not give a monkeys about Hercules. But every time IBM slaps *Turbo*Hercules down, all the *Hercules* fanbois cry “foul”.

Until the Hercules boys stop defending TurboHercules, they *will* have a torrid time on Groklaw. It was bad enough SCOG prentending to be Santa Cruz. Now we’ve got the Hercules boys thinking they’re TurboHercules!

What the folks on Groklaw seem to think is that I’m defending TurboHercules SAS. I’m not. I’m defending myself. It just so happens that in order to do so, I must also defend TurboHercules SAS. That will continue to be the case unless and until IBM explicitly says that, no matter what they think of TurboHercules SAS, they will not pursue the open source project itself.

PJ’s selective quoting and ignoring of facts that disprove her arguments has now led me co conclude that I will never get a fair hearing there. If I can get WordPress upgraded on my hosted site, I’ll start a new blog, Hercules vs. IBM, telling the truth – the truth PJ and her Groklaw followers don’t want to hear.

I don’t know how you can say that IBM is the aggressor here when
a) There has only been one suit filed in Europe,
b) IBM is the defendant in that suit.
It’s also worthwhile keeping in mind that Europe, where the lawsuit is currently being pursued, doesn’t recognize software patents. So the only way IBM could enforce those patents in Europe is if they were used in a mixed hardware/software implementation, not against a pure software implementation.

IBM escalated the fight to the open source project. They could have simply defended themselves against the antitrust case without ever mentioning patents, and the open source emulator would have been completely uninvolved.

Jay, the TurboHercules Web site says: “The software only package consists of the TurboHercules package itself. The source code for the binary used is available from the Hercules website http://www.hercules-390.org/.” When I go to the Hercules site, I don’t find TurboHercules source code. The “binary used” is not available on the TH site or anywhere else, so far as I can determine.

TH also says: “In April of 2009 we formed TurboHercules SAS/Inc to commercialize the open source Hercules mainframe emulator package. This was done is close cooperation with the current members of the Hercules project. In essence we are moving Hercules from a hobbyist toy to a full fledged, commercially supported, enterprise ready package that can be used in a variety of applications in the mainframe world.” This statement seems to imply (as do a number of other statements on the site) that TH has modified the Hercules code.

Does TH code differ from Hercules in any respect? If so, where is the code? If not so, how can “a hobbyist toy” ethically be marketed as an “enterprise ready package”?

Part of the TH package appears to be proprietary software. TH wants to bundle its software with its hardware for the sake of ease of support (exactly like IBM). TH has legally challenged IBM (not the other way round). IBM has responded only to TH and made no overt challenge to the Hercules project. Given these apparent facts, why aren’t you and other members of the Hercules project demanding public access to the “TurboHercules package” binary and source code? Why are you upset that IBM would defend itself vigorously against TH? Why shouldn’t IBM tell a commercial software/hardware vendor, upon being asked, that it does indeed have many patents that the vendor might be infringing? Why aren’t you trying to repair the damage TH’s actions are doing to the reputation of your Hercules project? (A brief trip around the Web will show you that many prominent open-source advocates think TH’s actions are badly wrong.)

I asked this question on Groklaw but it may be more likely to be noticed by someone who can answer it here.

A positive answer would radically change the dynamics of this issue. If the answer is “no” then it won’t have any effect at all.

I noticed that Hercules is available as an rpm as part of Fedora and is also a RHEL5 rpm on RPMForge.
I also noticed that IBM partners with RedHat and supports RHEL5 on IBM hardware.

The question is, does anyone know whether IBM has actually distributed Hercules themselves, perhaps as part of an RHEL5 distribution, or by it being part of some rpm repository mirror that they make available to their customers?

If they have, then they have distributed Hercules under the QPL which, to my non-lawyer understanding, bars them from asserting any patent claim against anyone for doing anything with Hercules.

A quick Google search didn’t find any direct indication of what IBM has distributed.

IBM did distribute a Rebook referring to the Hercules Emulator by name in publication SG24-4987 Linux for S/390 – you can run Redhat Enterprise Linux-31/64 Bit for zSeries on Hercules. And in the early days of Linux on zSeries – IBM used hercules as an example for people to get their feet wet with SUSE/Redhat distros and Z with the technology – But I do not believe they ever distributed the code- I never ordered the book hardcopy so I am not sure if a CD would have been included with it on it – the chapter was removed around Tue, 16 Apr 2002. – Possibly for this very reason. I am sure a copy can be located with the chapter somewhere – shit I might even have it I never delete anything.

No. The TurboHercules SAS-distributed binaries are compiled directly from the same sources you’ll find on the Hercules website.

If not so, how can â€œa hobbyist toyâ€ ethically be marketed as an â€œenterprise ready packageâ€?

This question shows a basic lack of understanding in the geek community of how mainframe shops operate. The reason that Hercules is a “hobbyist toy” (a characterization with which I disagree, but I’ll put that aside for the moment) is not the quality of the code itself. It’s been production-quality for several years now. It’s that there was nobody that its users could pick up the phone and call to get support, right now, until TurboHercules SAS came along.

Given these apparent facts, why arenâ€™t you and other members of the Hercules project demanding public access to the â€œTurboHercules packageâ€ binary and source code?

Because we’ve already got it, right there at hercules-390.org.

Why arenâ€™t you trying to repair the damage THâ€™s actions are doing to the reputation of your Hercules project?

If the treatment I’ve gotten over at Groklaw is any guide, the only damage is among one segment of the community that has already tried and convicted me, and the only way I could redeem myself would be to throw TurboHercules SAS under the bus entirely, even to the point of forking the project. I’m not going to do that, period.

(A brief trip around the Web will show you that many prominent open-source advocates think THâ€™s actions are badly wrong.)

At this point, I care as much about Groklaw’s opinion of me and my project as I do about the FSF’s opinion of my thoughts on the GPL.

Oops…I should clarify that the Hercules proeject has access to the same source that TurboHercules SAS uses; its binaries are built by compiling that source code with optimizations specific to the hardware platform they sell. I believe that that’s all that’s required under any Open Source Definition-compliant license.

I do not propose I am in a position to tell IBM what they should or should not do with their own software or business but here is an idea:

IBM has a packaged solution for Both z/VM, z/VSE and z/OS called the ADCD it cost around $800.00 and is available through IBM Developer Works â€“ it is licensed for â€œnon-production useâ€ and is specifically crafted for zSeries developers. It essentially contains the entire software stack for z/OS, z/VM, and z/VSE â€“ you can choose you the specific OS you would like when you join the program.

It does not come with support from IBM of any kind.

Qualify the Hercules open source software code to be to run these OSes based on any current limitations of Hercules â€“ distribute the Hercules source via IBM (i.e. Eclipse) â€“ free the Hercules community from any future threats and protect IBM’s investment on the z/Platform . This may open the door for Turbo-Hercules as well since they are NOT creating production environments â€“ and if this is the only option for DR solution for someone â€“ it still comes with no support from IBM or loss of business from IBM â€“ but would be an infinitely cheaper solution – that might actually keep them remaining an IBM Mainframe customer if disaster strikes. (Limit the time that these system can be used for this purpose)

Now what does IBM really get â€“ possibly by doing this and distributing the Hercules code it may prevent other vendors from ever wanting to do the same. They possible litigation and more bad press, plus the potential for something else opeing the platform beyond this scope. If other vendors build hardware â€“ chances are they will hit a patent. I do not think others would like to build their own emulators when there is already a perfectly good one available to all for FREE, with such limited marketing potential.

@Wol: Shame on you. You should know better. TurboHercules supplies support services to companies using the Hercules emulator. By asserting its patents, IBM attacks the Hercules emulator and only indirectly strikes at TH. This patent assertion against an open source project will almost certainly encourage Microsoft to likewise target open source projects with its own patent assertions. It is IBM’s own actions that are encouraging Redmond.

Again, the best way forward is for IBM and TH to sit down with SFLC and work out a way to settle things. Failing that, the two parties need to figure out a way to argue without IBM asserting their patents. In this case, it is clear that any patent assertion strikes at the open source project rather than the support services vendor.

Let me make it clear that I have never seen or used the Hercules software, and hadn’t even heard of it or the TurboHercules company until this dispute became public. I have no opinion on the anti-trust action or any possible defenses that IBM may raise in that regard. My sole concern here is that IBM’s behavior is likely to inspire Microsoft to target its own set of open source competitors with patent threats.

PJ has totally jumped the shark, Eric. If you want, I can show you the details of how she makes people’s posts disappear (and how her definition of “personal attack” means that you cannot question why someone else believes something, but they can freely call you a “troll” or other such names without the burden of having to supply so much as a fact, let alone a link, to back up their assertions). Heck, they seem to think that anyone capable of using the blockquote tag has a troll template of any type.

What’s manipulative about the way she vanishes posts is that the person who posted it will still see it so long as they retain the same IP. So as far as they’re concerned, PJ has responded to them and everyone else is just ignoring them. If she used that on mere trolls, I would remain quiet (I’ve known of this method for at least a year or two), but these days she’s using it to isolate people and make them believe that everyone else believes that they’re wrong. Classic bandwagon effect. Oh, there’s one other caveat to her disappearing method: you can still see the parents of your post, even if they’ve been vanished as well. Sometimes you may even see the whole vanished thread. I have lots of screenshots documenting the process. Also, I have uncovered evidence that when she edits posts, she does so silently. In a normal forum, you either delete things normally (in which case, everyone notices), or you put text like {PERSONAL ATTACK SCRUBBED} into the body of the edited post. I cannot honestly think of even one other place that is run this poorly with respect to comments. I thought that everyone who did the silent edit thing had been caught & shamed out of it years ago, but maybe I haven’t been paying enough attention, or I’ve just been on better-run fora.

Anyhow, the point is that you can’t get a fair hearing on Groklaw. The definition of “troll” has been “anyone who disagrees with us” and PJ won’t even listen to folks who tell her that microcode is (surprise!) still code. Hell, I don’t think she knew what an emulator was. She went off into conspiracy land before she could find any facts and now I think she’s going to shut off the site into members only articles or something. At least with regards to the conspiracy stuff. I wonder how long before that hardmath guy will get banned at this rate? I’m not him, PJ, but maybe you should actually LISTEN to people sometimes. If there are so many “trolls” right now, it’s not because we’re being paid (I’ll swear as many times as I have to in front of any court you want that I haven’t been paid a dime for this crap), it’s because you’re *wrong* …

Sorry, I’m just sick of the BS over there. You follow a site for years, do everything you can to drum up publicity for it in the early days, then disagree that a letter written to establish willful infringement and triple patent damages while simultaneously minimizing the risk that they could seek a declaratory judgment of non-infringement should be interpreted as a “threat” and wham, you’re some kind of paid Microsoft shill.

I think it comes down to one simple fact â€“ at this time a site like Groklaw needs a story like this, more than this story needs Groklaw. The open source community can recognize what qualifies as open source software, and what type of threat has been raised against it, either by mistake or with full intention â€“ but either way this has implications to the community and companies around the world that have embraced Open Source Software. Unfortunately this is more than just a flashy headline.

Hercules has been in development for well over 10 years. I dumped an RPM – hercules-2.15-1.i686.rpm from 2001 just to check the license â€“ gee it was Q Public License version 1.0. as stated in file herlic.html. That RPM alone is older than Groklaw and SCO case by 2 years and the Hercules project is older that that RPM – most projects do not start with release 2.1.5.

Jay the work that has been done on this project has been nothing less than extraordinary â€“ it actually exemplifies what open source is, and what it can do. Hercules has a very small but strong community of people who work on the project and this includes or has included folks from inside IBM. Roger Bowler and the entire Hercules team were listed in the credits of that â€œUnabridged Redbookâ€ copyrighted by IBM in 2000 titled: â€œLinux for S/390 – for their work and the value that Hercules provides to IBM for running Linux on the S/390 and zSeries Hardware platforms. (s/390 was the forerunner of the current IBM z/Series mainframe platform).

The problem really comes down to this: The 500 patent pledge is a step in the right direction, if it is upheld by IBM at face value. But what happens when a open source project â€œXâ€ infringes on patent #501 â€“ are we back where we were before the list of the 500 patents was ever created by IBM? If so â€“ this raises a significant problem for Open Source Community and the companies that have chosen to embrace Open Source Software. What message does it send to other companies with large patent portfolios.

I do not think this is going to blow over since a formal complaint has been filed by Turbo-Hercules SAS with the EC. This has in effect cornered IBM into making some sort of decision (The EC is the wild card in all of this) â€“ it may take time â€“ but if the EC does in fact force IBM to license their Mainframe Operating Systems on other hardware or software emulator platforms – IBM may be faced with no choice than to go after Hercules using those â€œother patentsâ€.